R. v. Janzen

2029 BCSC 256 R. v. Janzen IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Janzen, 2019 BCSC 256 Date: 20190228 Docket: 172696-2 Registry: Victoria Regina v. Kenzie Robson Janzen Corrected Judgment: The text of the judgment was corrected at paragraphs 2, 17, 84, 90, 98, 117 and 130 on October 6, 2022. Before: The Honourable Madam Justice Fitzpatrick Reasons for Judgment (Voir Dire) Counsel for Crown: C. Peel Counsel for Accused: B. Movassaghi Place and Date of Trial: Victoria, B.C. December 17-18, 2018 January 21-22, 2019 Place and Date of Judgment: Victoria, B.C. February 28, 2019 Introduction [1] The accused, Kenzie Janzen, is charged with five counts: that on October 31, 2017, she was guilty of possession for the purpose of trafficking in GHB, cocaine, heroin, fentanyl and methamphetamine, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2) (the "CDSA"), and that she was driving a motor vehicle while impaired, contrary to s. 253(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. [2] This voir dire was declared to determine the admissibility of certain evidence found in Ms. Janzen's vehicle after her arrest. She contends that her Charter rights were violated when the police entered her vehicle without a warrant, conducted a search of her purse and then left her purse in a "staged" state while asserting the purse was as it was found. Alternatively, she contends that the officer, who viewed items in her vehicle and purse from the window, conducted a search based solely on this view, and that this search was unlawful. Finally, assuming there was no "staging" and no search by the police, Ms. Janzen argues that her arrest was unlawful as the police did not have reasonable grounds to do so. On any of these grounds, she says that the drugs found in her purse in the vehicle should be found to be inadmissible. [3] The Crown's initial evidence came solely from the testimony of Cst. Dion Birtwistle. The defence called evidence from Ms. Janzen. The Crown's reply witness was Cst. David Smit, who spoke to the credibility issues that arose from Ms. Janzen's evidence. Cst. Birtwistle [4] Cst. Birtwistle has been with the Saanich Police Department ("Saanich PD") for approximately ten years. He began his police career on general duty. Since early 2015, Cst. Birtwistle has been with the Traffic Safety Unit. The Unit's mandate is the enforcement of motor vehicle legislation and bylaws and matters arising under the CDSA and Criminal Code. He has never been a member of a drug enforcement unit. [5] The events began on October 31, 2017. Around 12:30 p.m., the Saanich PD received a call or calls from concerned citizens. At least one person called to complain that a vehicle was stopped first in line at the traffic lights at the intersection of Wilkinson Road and Interurban Road, which is a very busy intersection in Saanich, and that specifically, the vehicle had remained stationary during two cycles of the green light. Cst. Smit was dispatched to the scene to investigate a suspected impaired driver. Cst. Birtwistle was dispatched as a back-up officer. [6] Cst. Smit arrived in his unmarked police truck. He parked in such a way as to block the vehicle that was stationary just before the intersection. The vehicle was a Chevrolet Cavalier (the "Cavalier"). He found Ms. Janzen as the driver and lone occupant of Cavalier. [7] When Cst. Birtwistle arrived shortly thereafter, he also noticed the Cavalier that was stationary at the intersection. He concluded that this was the vehicle that was the subject of the citizen's call to the Saanich PD. Cars from behind the Cavalier were flowing to the left of the vehicle on the driver's side so that they could continue either through the intersection or turn left. He believes that he parked immediately behind the Cavalier. [8] Upon his arrival, Cst. Birtwistle observed Cst. Smit speaking to a female on the traffic island to the right of the vehicle. He did not speak to Cst. Smit at this time. He had no information about the driver of the Cavalier and did not interact with her at all. [9] At some point, Cst. Birtwistle went up to the Cavalier on the passenger side, considering that this was a safer move given that traffic was moving on the driver's side. No one was inside the vehicle. He says that the passenger side window was rolled down almost to the bottom. [10] Cst. Birtwistle says that, as he looked into the window, he noticed an open large black purse and various white papers on the passenger side seat. He assumed it belonged to the person who had been driving the Cavalier. The side pocket of the large purse was also unzipped and open. Plainly visible in that side pouch were a large number of what appeared to be Canadian $20 bills. Cst. Birtwistle did not have any concerns arising from the cash since it was the end of the month and it could have been for rent. [11] However, while standing at the passenger side window looking in, Cst. Birtwistle says he noticed that, immediately beside the cash, was a visible glass ball with "gray smoky residue". He believed this item to be a meth pipe. [12] Cst. Birtwistle returned to his vehicle and recovered his cellular phone. He returned to the Cavalier and proceeded to take various photographs of what he saw inside the Cavalier from his vantage point outside of the vehicle on the passenger side. These photographs show the Cavalier and the items inside the vehicle and inside the black purse just as Cst. Birtwistle describes them. These photographs show the lowered passenger side window, the loose white papers, the open large black purse on the passenger seat containing various items, including, inside the open side pouch of the purse, the cash and glass ball just beside the cash. There was also a black cellular phone inside the open zippered side pocket of the purse. [13] Cst. Birtwistle stated that he believed the glass ball that he observed with his naked eye to be a meth pipe arising from his experience on the police force and his training. He had encountered a number of meth pipes in his policing history. He estimated that he had seen anywhere from 20-30 meth pipes in the past. In his previous experience, users put small amounts into the meth pipe and smoked up all the drugs. [14] Cst. Birtwistle's initial formal training was at the Justice Institute. Beside that, his only other formal training in drug matters had taken place only days before the encounter with the Cavalier. [15] Just one week earlier, on October 26, 2017, Cst. Birtwistle took a one-day increment training course put on by the Saanich PD Street Crime Unit. He describes that the trainers of this course were drug experts whose mandate relates to drug trafficking investigations and property crime perpetrated by prolific offenders. One of the items studied and passed around by the course participants were meth pipes that had smoky residue in them. [16] At the course, the trainers told Cst. Birtwistle that, in the past, users of crystal meth had used the drugs in the manner that he himself understood to be the case, namely that users would put only sufficient drugs in the pipe for a single use. Once the drugs were smoked, the drugs were essentially spent. [17] However, on October 26, 2017, he was told by the Street Crime Unit officers that users had recently changed their methods. Now, they were said to be putting larger amounts of drugs in the pipe. The users would heat the pipe to a point where the drugs would stick to the side of the bowl. Then, the pipe would be cooled down and it could then be available for later consumption of the remaining drugs over a longer period of time. Cst. Birtwistle understood from the trainers that this was being done by drug users to avoid detection since police rarely charged anyone regarding drug paraphernalia that had only trace amounts of residue. In this manner, users could expect that police officers would not suspect that drugs still remained in the pipe. Also, from this training, Cst. Birtwistle understood that drug users were using this method as an alternative to carrying around the drugs in other containers. [18] Accordingly, as a result of his training that day, Cst. Birtwistle formed the belief that there was a real likelihood that meth pipes contain an amount of drugs well beyond trace amounts. [19] Cst. Birtwistle described meth pipes as containing a glass tube with a glass ball on the end. The glass ball is about the size of a large grape. He says that the glass ball with the smoky residue or gray haze that he observed in the open pouch of the black purse was consistent with what he had observed in his career as a police officer and what he had learned in his recent training. [20] All of this led to Cst. Birtwistle's belief that this meth pipe had recently been used, since it contained gray haze consistent with the heating of meth, and that this meth pipe probably contained a larger amount of drugs beyond just trace residue. [21] As a result of his observations and conclusions, Cst. Birtwistle then advised Cst. Smit that the driver of the Cavalier was subject to arrest for possession of drugs. Ms. Janzen was then arrested and charged. [22] Cst. Birtwistle says he then entered the Cavalier. He pulled out the glass ball, which, as it turned out, was the end of a meth pipe, just as he had earlier concluded. Upon moving an article of clothing and the papers on the passenger seat, he also found a Mason jar containing clear liquid behind the black purse that he believed to be GHB. In addition, he located a small closed red purse that he had earlier seen inside the open black purse during his initial observations. Inside the red purse were plastic baggies containing white powder substances. He also found what he believed to be a scale. [23] Cst. Birtwistle then advised Cst. Smit that the driver of the Cavalier was subject to arrest for possession for the purpose of trafficking. Did Cst. Birtwistle Manipulate the Evidence? [24] The first issue is a factual one. The defence contends that the pictures taken by Cst. Birtwistle as to what he saw from outside the passenger side window were "staged" after a search of the Cavalier which exposed the items in the black purse, including the glass ball. The issue then turns on whether Cst. Birtwistle was telling the truth in his statements about what he observed in the Cavalier from outside the vehicle when he approached it in the first instance. [25] Cst. Birtwistle denies manipulating anything in the Cavalier before he took the photographs that show the cash and glass ball, which he believed to be a meth pipe, in the open side pocket of the black purse. He says that he did not touch the Cavalier or anything in the vehicle until Cst. Smit told him that Ms. Janzen had been arrested for possession of drugs. [26] Ms. Janzen tells a very different story as to the state of her black purse when she was asked to exit the Cavalier at the request of Cst. Smit. [27] Firstly, she states she did not own the Cavalier. She said that the reason she sat in the Cavalier through two cycles of the green light was because she was texting on her cell phone. [28] Ms. Janzen says that when Cst. Smit came to her driver side window, he asked for, in the usual fashion, her license and registration. She says that she went over to her black purse and took out her yellow interim driver's license from the side zipper pocket (where Cst. Birtwistle saw the cash and the meth pipe). She says that she then zipped up that side pocket. Then she says she went into the glove box and looked for the registration of the vehicle. She says she found a number of papers with it. She says that she found the registration and set the other papers on top of her black purse. She then got out of the vehicle when asked to do so. [29] Ms. Janzen denies that her passenger side window was down to the level as photographed by Cst. Birtwistle. She says that she easily gets cold and she would not have had it open and at that level. She denies that side pocket in her black purse was unzipped as she would not have wanted anyone to see all the cash. Finally, she says that the white papers were not beside her purse, as photographed, but on top of it. [30] It is obvious that Ms. Janzen's description of her vehicle window, her black purse and its contents, as she left it, is directly contradicted by the photographs that Cst. Birtwistle says he took from outside of the Cavalier after she had left the Cavalier and when Ms. Janzen was being dealt with by Cst. Smit. [31] Both Cst. Birtwistle and Ms. Janzen's credibility are clearly in issue and remain to be considered within the well-known authorities as to that issue, including those discussed in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186. Within that analysis is embedded the issue as to the reliability of Ms. Janzen's evidence, including her ability to accurately observe, recall and recount the events in question: R. v. H.C., 2009 ONCA 56 at para. 41. [32] Cst. Birtwistle was not shaken in his testimony at all during cross-examination. He firmly denied tampering with anything in the Cavalier before Ms. Janzen's arrest to the point of moving the white papers, looking inside the black purse and opening the side pocket to expose the cash and meth pipe. He firmly denies doing this to "stage" the contents of the Cavalier for the photographs he later took. [33] I found that Cst. Birtwistle gave his evidence in a calm, clear and straightforward manner. There is nothing to suggest that he would violate his professional duty as a police officer to engage in such egregious behavior. I found him to be a credible witness. [34] Cst. Smit's evidence supported that of Cst. Birtwistle to a degree. Cst. Smit maintained his view of the Cavalier to a point. He did not see anyone approach the vehicle from his close proximity up to the time that Cst. Birtwistle arrived. He saw Cst. Birtwistle approach the vehicle but he did not see Cst. Birtwistle open any doors to the vehicle or stick his arm inside the Cavalier before Cst. Birtwistle told him that Ms. Janzen was subject to arrest for possession. [35] Cst. Birtwistle advised Cst. Smit that Ms. Janzen was subject to arrest for possession sometime after Cst. Smit was with Ms. Janzen at the ambulance but before Cst. Smit administered the sobriety test to her. Cst. Smit estimates that he would have been solely focussed on Ms. Janzen and not Cst. Birtwistle and the Cavalier while both he and Ms. Janzen were at the ambulance for no longer than five minutes. [36] Ms. Janzen claims that Cst. Birtwistle was lying in his testimony as to what he says he saw from the passenger side window, as photographed by him. She claims that he could only have manipulated the contents of her purse and the white papers so as to "stage" the photographs. [37] Ms. Janzen's evidence was challenged in cross-examination and by other evidence that raised significant questions as to the reliability of her evidence. [38] Ms. Janzen denied that she was impaired that day by either alcohol or drugs. She does not agree that she failed the sobriety test administered by Cst. Smit. She denies driving erratically that day, despite the concerned citizen's call to the Saanich PD that lead to Cst. Smit's attendance at the scene. She says that she was simply going the speed limit, whether on the local roads or on the highway. She also denies the reports from members of the public that her head was bobbing up and down or that she was slumped forward while she was observed driving in traffic. [39] Ms. Janzen's evidence was contradicted and ably rebutted by Cst. Smit's testimony. [40] Cst. Smit had been with the Saanich PD for almost 11 years. He is also a member of the Saanich PD's Traffic Safety Unit. He stated that the matter began when a member of the public called the police reporting that a vehicle was being driven in an erratic manner. The person who reported this had been following the Cavalier for a significant time. When Cst. Smit arrived on the scene, he parked his vehicle immediately in front of the Cavalier. [41] I accept Cst. Smit's evidence and find as a fact that his observations and interactions with Ms. Janzen from that time forward were as follows: a) He approached the driver's side window that was either fully up or partially up. Ms. Janzen was in the driver's seat and her head was slumped over such that he could not see her eyes. I consider the failure to note Ms. Janzen's slumping in his notes was simply inadvertent. He did not observe her with a phone in her hand, contrary to her assertion that she was texting at the time; b) He knocked several times on the window to try to get her attention; c) When she finally responded to him, she did not seem to know where she was. Although Cst. Smit advised her that she was stopped and under investigation arising from reports from the public that she was impaired, she seemed confused or puzzled about this; d) There was no odour of liquor coming from either Ms. Janzen or the vehicle; e) He asked for her driver's license and insurance documentation. At that point, Ms. Janzen fumbled around looking for her license and after a few minutes, she gave that to Cst. Smit. She also provided insurance documentation to Cst. Smit but he cannot recall where they came from; f) Ms. Janzen then asked Cst. Smit a number of times why she had been stopped, a point he had already addressed only minutes earlier. At this point, her arms were flailing around. She was shuffling paper around her black bag on the front passenger seat. [42] At this point, Cst. Smit became concerned for Ms. Janzen's safety. This concern arose from the civilian's report as to her erratic driving, the fact that she was slumped over in the Cavalier when he approached and initially unresponsive to his attempts to rouse her and finally, what he considered to be Ms. Janzen's abnormal reactions when they spoke. Cst. Smit was concerned that she was under the influence of a substance. [43] Cst. Smit did notice some sort of bag on the passenger seat of the Cavalier but he did not pay particular attention to the bag since he was focussed on Ms. Janzen and her safety. He acknowledges that Ms. Janzen was shuffling papers "in and around the bag" and also, possibly on top of the bag or purse, consistent with her evidence as to her efforts to find her license and the registration. [44] He advised Ms. Janzen that she was under investigation for impaired driving. He directed Ms. Janzen to get out of the vehicle. He called an ambulance. He was concerned for Ms. Janzen's safety and had no officer safety concerns at the time. [45] The ambulance arrived and parked about 10 feet away. Cst. Smit walked Ms. Janzen over to it. He did not observe any difficulty with her gait at that time. The testing done by the ambulance attendants indicated her vital signs were normal save that her heart rate was about double a normal heart rate. Cst. Smit was still concerned about Ms. Janzen. He continued to suspect that she was under the influence of a substance. In fact, in his experience, an elevated heart rate is consistent with use of a stimulant. [46] Based on his interactions with Ms. Janzen (including her flailing of arms, abnormal speech and cognitive difficulties in understanding her situation) and her elevated heart rate, Cst. Smit decided to do a standard field sobriety test. The test is comprised of three different parts, being the horizontal gaze, the walk and turn and the one-leg stand. I will not detail the testing procedure but Ms. Janzen decidedly failed the test. She passed the horizontal gaze test but Cst. Smit indicated that this part of the test does not normally detect substance or stimulant use. She failed the walk and turn part of the test in virtually every aspect such that Cst. Smit could not keep up with the number of errors. Similarly, she failed the one-leg stand part of the test. [47] All of his interactions with Ms. Janzen led Cst. Smit to believe that she was impaired by drugs and unable to operate a vehicle. She was given a 24-hour roadside notice of prohibition as a result. [48] In my view, Ms. Janzen's credibility has been sorely tested at this voir dire: a) She acknowledged that she "could" have been stopped for two full cycles of the green light before Cst. Smit attended; b) She acknowledged that other motorists honked at her while she was stopped at this busy intersection. She states that she was texting on her phone while all this was going on. She states that these communications would have been "important" however, she cannot recall what was so important. I find it extremely unlikely that she would have carried on texting during two full green light cycles at such a busy intersection and despite the honking of other drivers. The more plausible explanation was that she was not conscious or was otherwise incapacitated and was not using her phone. This is consistent with what Cst. Smit first observed, in that he had to knock a few times on the driver's side window before Ms. Janzen even reacted to this noise immediately beside her head. Cst. Smit did not observe any phone in her hands; c) She denies having any knowledge as to who owned the red purse plainly visible in her black purse and how it got in there. There is no doubt, even by her own evidence, that this was plainly visible in her black purse and that she had it beside her while driving. She says that she was also digging around in this black purse while searching for her temporary driver's license to give to Cst. Smit. She claims that she only saw the red purse when Cst. Smit asked for her driver's license. She claims to only now have knowledge of the contents of that red purse. She was only able to say that she was hanging out with some "terrible" or "horrible" people at that time and she would not put it past them to have placed the red purse in her black purse. I consider this to be a very incredible and fanciful proposition; d) On October 27, 2017, only four days before this incident, Saanich PD officers found Ms. Janzen in the driver's seat of a different vehicle. She denies the allegations of those officers that she was found unresponsive at that time; e) She claims that she has no idea how the Mason jar of liquid got into the Cavalier. She says that she simply put her purse on top of it. I also consider this to be a very incredible and fanciful proposition. While I accept that the GHB looked sufficiently like water, this does not then explain why Ms. Janzen would not have seen it or known how the Mason jar found its way into her vehicle; and f) She says that the black cellular phone found in the zippered pocket was hers. She has differing recollections about other items in her purse as to whether they are hers or not. [49] I accept that a person can be nervous when confronted by the police. Ms. Janzen appears to have been able to understand the later Charter warnings and request to see her lawyer at the Saanich PD detachment. However, her reactions toward Cst. Smit went well beyond what might be considered normal behavior. This includes her very elevated heart rate and flailing arms. She had cognitive difficulties, given her puzzled and confused expressions when repeated told by Cst. Smit why he was there as she repeatedly asked why she was being stopped. [50] Ms. Janzen's erratic and unusual behavior is not explained by the fact that she did not own the Cavalier and that she possibly had to look for the insurance papers in the glove box. I do not accept Ms. Janzen's other explanation that she didn't respond normally because she couldn't hear Cst. Smit over the traffic noise. At all times, Cst. Smit was very near her. [51] In the above circumstances, I find that Ms. Janzen was impaired to a degree such that I am unable to rely on her evidence. Based on the objective findings of Cst. Smit, Ms. Janzen's impairment was a reasonable conclusion. Also, it is reasonable to conclude that her memory and observation skills were significantly and negatively affected in terms of what happened that day. I would emphasize that this is not a finding of impairment in relation to Count 5 of the Indictment. [52] Ms. Janzen's assertions that she was shuffling papers on "top" of her purse, which was supported to some degree by Cst. Smit's evidence, does not support the further conclusion that the papers remained on top of the purse by the time she exited the Cavalier. [53] To the extent that Cst. Birtwistle and Cst. Smit's evidence conflicts with that of Ms. Janzen, I prefer the evidence of the officers, particularly Cst. Birtwistle's evidence as to what he observed in the Cavalier that day. In addition to the matter of reliability, I also have serious doubts about Ms. Janzen's credibility. There is no other reasonable conclusion particular in light of Ms. Janzen's purported clear memory of only certain and selective aspects of what was happening that day. [54] I conclude and find that Cst. Birtwistle's photographs, particularly Nos. 1, 2 and 5, accurately portray what he saw inside the vehicle that day with his naked eye from outside of the Cavalier and before the arrest of Ms. Janzen and the later search of the Cavalier. Some of the photographs introduced at this voir dire were enhanced by using the zoom function on his cellular phone; however, they do not add anything beyond what Cst. Birtwistle observed with his naked eye and which are depicted in other photographs as to the items inside the vehicle, including the contents of the black purse. [55] I find as a fact that Cst. Birtwistle did not physically enter the Cavalier (including breaking the plane of the open window) before taking the photographs of the inside of the Cavalier and that he did not alter any items inside the vehicle before taking the photographs. Did Cst. Birtwistle Conduct a "Search"? [56] The second issue arises from the defence argument that, even if Cst. Birtwistle just looked inside the Cavalier to view the contents of Ms. Janzen's purse, this was a "search" within the meaning of s. 8 of the Charter. [57] The Crown denies that Cst. Birtwistle's observations from outside the Cavalier constituted a search. However, the Crown conceded that if it was, the search would have been unreasonable and Ms. Janzen's later arrest was unlawful. [58] The starting point is R. v. Mellenthin, [1992] 3 S.C.R. 615. That case involved a traffic stop at night where police officers had shone a flashlight around the interior of the vehicle. They did this to check for drugs and for officer safety concerns. The Court agreed with the Crown that a visual inspection of the interior of the vehicle was not a search, stating that an inspection was essential for the protection of police officers on duty during the check stop. [59] In R. v. Grunwald, 2010 BCCA 288, an inspection during a traffic stop was also in issue. Drugs were observed in the back of a truck when the officer shone a flashlight through the tinted canopy window. It is important to note, however, that this action was taken after the purpose of the traffic stop had concluded (para. 31). Accordingly, the court proceeded to consider whether this action constituted a search. [60] In Grunwald at paras. 34-55, the court analyzed the issue as to whether the accused had an expectation of privacy, in accordance with the factors discussed in R. v. Patrick, 2009 SCC 17 at para. 27. A key factor in not finding a reasonable (or even subjective) expectation of privacy included that the accused was in a vehicle on the road, subject to inter alia, the "eyes of other curious drivers" and that the drugs were in "plain sight" inside the vehicle. There was no suggestion that the police were not entitled to be on the road and able to visually look into the vehicle (para. 39). The court stated: 48. A police officer is not required to avert his eyes when he comes across something suspicious that is unrelated to the investigation he is pursuing. In the circumstances of this case, where Constable Mulrooney had lawfully stopped the vehicle, where the smell of marihuana was obvious and the back of the truck was open to public view, Constable Mulrooney was entitled to look through the canopy window into the back of the truck. 49. In these circumstances, Mr. Grunwald had no reasonable objective expectation of privacy in the back of his truck. It follows that there was no search, and therefore no s. 8 violation. The officer saw the marihuana, which gave him reasonable grounds to believe that Mr. Grunwald was committing an offence. He arrested Mr. Grunwald and the marihuana was seized incidental to that arrest. [61] In R. v. Wilson, 2015 ONSC 4135, the court comprehensively reviewed the case authorities and legal commentary on this issue, including referencing Mellenthin and Grunwald. Following those authorities, at paras. 17 and 34, the court found that a police officers' observations from outside a vehicle parked on a road of a hand-to-hand drug transaction inside a vehicle did not constitute a "search" as the accused had no subjective or reasonable expectation of privacy. [62] The final case upon which the Crown relies is R. v. Menzies, 2017 BCSC 377. There, the accused had been arrested for obstructing police officers. Similar to the facts here, after that point, an officer went to have a look in her vehicle and then spotted drugs in plain view inside her open purse (para. 19). Justice Baird rejected that any "search" had occurred: 24. There is nothing at all forbidding a police officer, or anyone else for that matter, from looking into the windows of a car stopped on a public highway. As a matter of law, such a thing does not even qualify as a search: see, for example, R. v. Grunwald, [2010] B.C.J. 1088 (C.A.). I have been provided with no reason to doubt Constable Koskela's testimony concerning his observations of narcotics in plain view during his wholly uncontroversial visual inspection of Ms. Menzies' vehicle. Solid grounds for Ms. Menzies' arrest arose from it, and the vehicle search incidental thereto was authorized by the common law and was reasonably conducted. I find that there was no infringement of s. 8 of the Charter in any of these activities. [63] Considering the Patrick factors discussed in para. 34 of Grunwald, I find: 1. Cst. Birtwistle observed a meth pipe, which is not evidence of a highly personal nature. 2. Ms. Janzen had a direct interest in the contents of her purse. 3. The Crown accepts that Ms. Janzen had a subjective expectation of privacy. This is a reasonable concession since she was well aware of at least the substantial cash and the meth pipe in the side pocket of her black purse. 4. I agree with the Crown that Ms. Janzen's subjective expectation was not objectively reasonable: (a) The vehicle was not owned by Ms. Janzen; (b) The vehicle was stopped and later parked on a busy road at a busy intersection. The meth pipe was in plain view by anyone, including the police, who might pass by the side window of the Cavalier; (c) I accept that Ms. Janzen did not abandon the vehicle since she was directed by Cst. Smit to exit the Cavalier. However, I reject Ms. Janzen's evidence that she made efforts to "hide" the contents of her black purse before she left the vehicle. In my view, it is more likely the case that she was so flustered by Cst. Smit's questions that she simply forgot to do this even though in hindsight she clearly now regrets not closing up her purse; (d) Ms. Janzen's assertions that she had a high expectation of privacy in relation to her purse are at odds with her denial that she had any knowledge as to how the red purse got inside her purse; (e) she was told by Cst. Smit as to reasons for the further questioning of her and she should have been aware that other persons, such as police officers, could continue to look into the Cavalier while she was in the ambulance and being questioned by Cst. Smit; (f) When Cst. Birtwistle did look into the Cavalier, it was not intrusive. As the above cases demonstrate, the police peering into vehicles, as any member of the public could do, is not an evidence-gathering technique that is objectively unreasonable; and (g) The viewing of the meth pipe did not expose any intimate details of Ms. Janzen's lifestyle, or information of a biographic nature. [64] The defence argues that Cst. Birtwistle had to have a valid reason to approach the vehicle. Cst. Birtwistle advances a number of reasons for having done so, including officer safety, looking for evidence and just "curiosity". I accept that there were no officer safety concerns; however, I conclude that he might have legitimately approached the vehicle to determine its status since it remained parked almost into the intersection and was certainly blocking traffic at a busy thoroughfare, all which engaged public safety concerns. I also agree with the defence that there was no reason to look into the vehicle to look for evidence. The reason for investigating the matter was in relation to an impaired driver and Cst. Smit was dealing with Ms. Janzen in that respect outside of the vehicle. [65] Cst. Birtwistle was a backup officer, however, and was directed to be on the scene to assist generally with the matter. The fact that he was "curious" about the vehicle is not surprising since one does not generally come across a stationary vehicle at the front of the line in traffic just before a major intersection unless something is wrong. As a police officer on scene, I do not see that his inspection of the outside of the Cavalier was unreasonably in the circumstances and inconsistent with his duties as a backup officer: see also R. v. Richards, 2012 BCSC 522 at paras. 53-73. [66] In any event, I find that Cst. Birtwistle was not required to have a valid investigative reason to approach the vehicle. In Grunwald at para. 39, the investigation arising from the traffic stop had concluded. Similarly, the officer in Menzies had no reason to approach the vehicle in relation to investigating the obstruction charge after arrest (para. 19). Just like any member of the public who might have passed by, Cst. Birtwistle was entitled to be on the public roadway and he, like anyone else, could easily peer into the windows of any vehicle found there. In that respect, even if Cst. Birtwistle was just "curious" about the vehicle, that does not transform his visual observations into a search. [67] The defence refers to R. v. Tombs, 2012 BCSC 1826; R. v. Phengchanh, 2011 BCSC 484; R. v. Gallegos-Garcia, 2013 BCPC 315 and R. v. Reddy, 2010 BCCA 11. In my view, none of these cases supports the proposition that Cst. Birtwistle's actions constitute a search. [68] In Tombs, there was an investigative detention, followed by a visual observation by Cpl. Scott inside the vehicle where drugs were seen, followed by an arrest of Tombs and search by Cpl. Scott of Tombs and his vehicle incident to arrest that revealed more evidence. The Court found the detention to be unlawful and in breach of s. 9 of the Charter. The sum total of the analysis by the Court, relevant to this issue, is found at para. 86 when Justice N. Brown stated that the search by Cpl. Scott was "likewise arbitrary". However, it is far from clear which "search" the Court was referring to as being arbitrary. Certainly, there was no analysis of the relevant case law on the issue, as I have related above. As such, this case is not helpful. [69] Phengchanh and Reddy considered the limits of police powers to search incidental to an investigative detention, specifically in relation to officer safety: Phengchanh at paras. 36-40; Reddy at paras. 72-74. As there were no officer safety concerns in this case, and Phengchanh and Reddy did not deal with searches triggered by an officer's plain view of allegedly illicit contraband in the vehicle, these cases are not readily applicable to the analysis at hand. [70] Finally, I do not find the reasoning in Gallegos-Garcia to be compelling and persuasive. In that case, a considerate police officer had come to assist the accused who was having car problems. While near the vehicle, the officer spotted drugs in plain view through the tinted window. Beginning at para. 88, the court engaged in an analysis of the accused's privacy interests, similar to what is found in Patrick/Grunwald. However, despite citing Grunwald, many of the court's comments, found at paras. 95-97, are in direct conflict with those found in Mellenthin and Grunwald. I note that it has not been subsequently cited, let alone followed, by any court. [71] I decline to follow the conclusions found in Gallegos-Garcia for these reasons. In any event, the decision is not binding upon me. [72] I conclude that Cst. Birtwistle's viewing of the contents of the interior of the Cavalier, where the contents of Ms. Janzen's open black purse were in plain view from outside the vehicle, was not a search. Accordingly, there was no infringement of Ms. Janzen's s. 8 Charter rights as a result. Reasonable Grounds for Arrest? [73] The second issue turns on whether Cst. Smit had reasonable grounds to arrest Ms. Janzen for possession. The grounds for the arrest only arose from Cst. Birtwistle and, therefore, the matter must be assessed from his point of view: R. v. Debot, [1989] 2 S.C.R. 1140 at 1166-67; R. v. Le, 2006 BCCA 463 at para. 25. [74] The defence alleges that no reasonable grounds existed for Ms. Janzen's arrest, resulting in a breach of her s. 9 Charter rights. [75] Authority to effect a warrantless arrest is found in the Criminal Code: 495(1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; [76] The burden of demonstrating that the police had reasonable and probable grounds to arrest is on the Crown: R. v. Storrey, [1990] 1 S.C.R. 241. The requirement is both that the arresting officer subjectively had such grounds for arrest and that such grounds are objectively reasonable. The Court stated at 250-251: There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. [Citations omitted] In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. [77] The objective reasonableness of the arresting officer's grounds must be assessed from the standpoint of the reasonable person "standing in the shoes of the officer". The reasonable person is thus presumed to have the knowledge and experience of the officer or officers in question including if the matter involves the drug trade and the expertise of the officers in that field: R. v. Juan, 2007 BCCA 351 at paras. 19, 27; R. v. Luong, 2010 BCCA 158 at para. 24. See also R. v. Messina, 2013 BCCA 499 at paras. 20-24, where our Court of Appeal stated, at para. 24, that "an officer's reasons for arrest [must] be assessed from the vantage point of a prudent, reasonable and cautious police officer, similarly experienced as the arresting officer ". [78] The standard of proof required to establish reasonable grounds is "reasonable probability" rather than proof beyond a reasonable doubt or a prima facie case: Debot at 1166. Similarly, Justice Frankel noted in R. v. Jir, 2010 BCCA 497: 27. As has been stated many times, the "reasonable grounds" standard is not only less than that required for conviction, but is also less than the civil standard of proof. More recently, in Mugesera v. Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, the Court stated (at para. 114): the "reasonable grounds to believe" standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities [citations omitted]. Further, as Mr. Justice Hill noted in R. v. Sanchez (1994), 93 C.C.C. (3d) 357 at 367 (Ont. Ct. (G.D.)): The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted. [79] It is well established that the standard of reasonableness must be met not on a "piece meal basis" (Luong at para. 17) but in the "totality of the circumstances" (Jir at para. 28). [80] Here, I readily accept that Cst. Birtwistle subjectively had reasonable grounds for the arrest. It remains to be seen whether those grounds were objectively reasonable. The defence suggests that Cst. Birtwistle was simply going on suspicion and not on anything concrete. [81] Again, I accept that Cst. Birtwistle had a valid reason as the backup officer to approach the vehicle since it was still blocking traffic and there might have been concerns regarding public safety for passing motorists or passersby. He also had concerns about maintaining a continuous view of the vehicle in that respect, until it could be dealt with. I also accept Cst. Birtwistle evidence, also given at the preliminary hearing, that he was "curious" and that he looked inside the vehicle for "curiosity's sake". [82] When he approached the Cavalier, the only event that triggered further action from that point was his sighting of the small glass ball poking out of the side pocket of the side pouch of the black purse. While the defence questions whether he could truly have identified this small ball as a meth pipe from his vantage point, I accept Cst. Birtwistle's evidence on this point. His eyesight is clearly very good, he has extensive experience in visually identifying meth pipes - and it bears emphasizing that he was right. [83] With the sighting of the meth pipe in hand, the matter must then be assessed from the point of view of Cst. Birtwistle's training and experience to that time. [84] Prior to Cst. Birtwistle's attendance at the training course on October 26, 2017, he acknowledges that he would not have considered the glass ball itself with residue as a basis for an arrest for possession. Similarly, the Crown agrees that simply seeing the meth pipe on its own would not have been objectively reasonable grounds for arrest. As the Crown submits, there must be "something more". [85] The Crown refers to a number of cases involving the sighting of meth pipes in the context of establishing reasonable grounds for arrest. [86] The first case is R. v. Motevaselan, 2003 BCPC 533 (Motevaselan 2003). There, the officer observed the accused, who he believed to be a "small-time dealer", standing in a park in the Downtown Eastside. He observed the accused with a "used crack pipe". The court rejected that there were reasonable grounds for the later detention and search: 4. On the basis of the accused being detained only, that search was not lawful. The officer did not tell me he was searching for his own protection. As to whether the search was incident to arrest, there was simply not enough evidence before me for me to conclude that was a lawful arrest, even assuming the officer used the wrong words. The area, the reputation of the accused, certainly in combination with the presence of what has been referred to as a used crack pipe, is certainly grounds for the officer to involve himself in further investigation. Whether or not there is lawful grounds for arrest would depend on more evidence around that crack pipe, and whether it has obviously some substance in it, or whether it was simply an empty but used crack pipe. 5. But on the totality of that evidence, the location, the history of the accused and a used crack pipe, I am not satisfied that is reasonable grounds for arrest, absent some further evidence. It was reasonable grounds for detention. The officer would have been entitled to pat-down for weapons, but that is not what he did, and that is not the basis on which he told me he was searching the accused. [87] Accordingly, this case supports that the presence of the meth pipe alone, even if the pipe appears to have been used, would only support an investigative detention. To justify a lawful arrest, there must be a further basis upon which to reasonable conclude that the pipe contains a substance beyond simply residue. [88] In R. v. Motevaselan, 2004 BCPC 592 (Motevaselan 2004), the accused was again before the Provincial Court. This time he was found in the area in the Downtown Eastside known for its drug dealing. Before he was detained, other individuals in the immediate area were acting in a manner consistent with drug use. The accused, a known drug trafficker, was found with a "used crack pipe" which had inside it "yellowish and brown residue" (para. 11). Judge Arnold-Bailey (as she then was) found that used or not, the presence of a crack pipe with residue, in the circumstances, led to only one rational conclusion: that there was a substantial likelihood that the person was in possession of crack cocaine, either as residue in the pipe or as a quantity on his person. This gave the police objectively and subjectively reasonable grounds to arrest the accused and search him incidental to arrest: paras. 16 and 19. [89] The last case is R. v. Lambert, 2011 BCPC 203. Consistent with the facts found in the Motevaselan cases, the officer had seen Lambert, a known drug addict, in the Downtown Eastside. Lambert had a "much used" crack pipe in his hand. He was arrested for possession. The officer acknowledged he saw no residue in the pipe, although based on the burned end of the pipe, he suspected that residue was there. [90] In Lambert, beginning at para. 31, Judge Giardini conducts an extensive analysis of the relevant case law both in the Provincial Court and in this Court. Ultimately, she concluded that, while the presence of a blackened pipe indicated some prior use (although it still remained unclear when that prior use might have been), given the absence of evidence as to residue, there were no reasonable grounds for arrest (para. 62). [91] As the court in Lambert noted, every case involves a highly contextual analysis of the circumstances at play combined with the knowledge and experience of the arresting officer. The factors identified in that case and the Motevaselan cases arose in the Downtown Eastside, an infamous hotbed of drug trafficking and drug use. Circumstances such as the area where the crack pipe is found and the reputation of the accused in relation to drugs are all highly relevant. [92] However, even if a used crack pipe is observed in the Downtown Eastside in the hands of a known drug trafficker or drug user, this will only be grounds for an investigation detention, not arrest: Lambert at paras. 61-62; Motevaselan 2003 at para. 4; R. v. Spitale, 2005 BCPC 586. The scales were only tipped in Motevaselan 2004 based on clear evidence of the police that there was visible residue in the pipe: 16. Used or not, the presence of a crack pipe in these circumstances, which include but are not limited to the location of the lane in the 100 block East Hastings, the location of the accused behind the dumpster, which affords an added element of privacy, and the actual possession of the crack pipe by the accused with apparent residue in it, give clearly objectively and subjectively reasonable grounds to arrest the accused based on the well known test in R. v. Storrey, and then to properly search him incidental to arrest. [93] In this case, it will be abundantly clear that none of these contextual circumstances are at play here. Cst. Birtwistle had absolutely no personal interactions with Ms. Janzen beyond seeing her from afar when Cst. Smit was dealing with her at the side of the road. He knew nothing about her, save that she was most likely the driver of the Cavalier. He also reasonably concluded that, since she was the sole occupant of the vehicle who had left her purse on the passenger seat, she had some connection to the black purse and the meth pipe. He did not make these observations in a known drug use area. Indeed, Cst. Birtwistle had no idea as to whether Ms. Janzen was a drug user or drug trafficker or whether she was even the owner or user of the pipe. He had no idea as to whether any drugs were involved in the incident for which she was stopped, although he might have suspected that, given the reasons for which she was being investigated by Cst. Smit. He also had no idea as to when the "smoky residue" or "gray haze" on the glass ball would have been deposited, whether it was that day or months earlier. He simply observed that she had a meth pipe in her purse. [94] Accordingly, the circumstances at the scene taken alone, while justifying an investigative detention, did not justify an arrest. Cst. Birtwistle stated that, although he was not a specialized drug officer, he had encountered meth or crack pipes some 20-30 times. He acknowledges that he did not see any drugs in the glass bowl, only smoky residue and a gray haze. Prior to October 26, 2017, he did not consider such circumstances as justifying an arrest for possession. [95] However, the Crown argues that the further factor here - or "something more" - that tips the scale in favour of establishing reasonable grounds for arrest was what Cst. Birtwistle learned at the Saanich PD incremental course only days before. Cst. Birtwistle stresses that, only days before Ms. Janzen was arrested, he was told of the new way that drug users were loading and using their crack pipes to facilitate use and avoid detection. Based on that recent training, and combined with his observations and experience, the Crown argues that Cst. Birtwistle had objectively reasonable grounds that the pipe contained drugs. [96] The defence refers to R. v. Lee, 2009 BCSC 616, a case considered in Lambert. The facts in Lee were somewhat similar to Ms. Janzen. The police encountered a couple in a running car in Stanley Park. Both occupants appeared to be sleeping or unconscious. They were eventually roused and asked to get out of the vehicle and they did. Backup officers arrived and one officer saw, through the open passenger door, a crack pipe on the floor discoloured by dark marks indicating that it was been lit or used at some point (para. 17). The driver, Lee, was then arrested for possession of cocaine. Lee argued that his detention was arbitrary and the Court agreed (paras. 26, 54). [97] Lee also sought an order to exclude the evidence of the crack pipe. At para. 62, the Court rejected the Crown's argument that the officers' grounds (unresponsive people and a crack pipe being found), were sufficiently reasonable grounds for arrest. In part, the Court relied on the evidence that there was nothing in Lee's behavior that indicated he might be in possession of drugs. Here, Cst. Birtwistle had no information upon which to believe that Ms. Janzen was under the influence of drugs. [98] In addition, that fact in Lee is distinguished from what Cst. Smit found in relation to Ms. Janzen; however, it is irrelevant to the analysis here because Cst. Birtwistle, who was the only officer making the decision to arrest, had no knowledge of Cst. Smit's interaction with her and his conclusion that she was likely under the influence of a substance. [99] The comments of Justice Griffin (as she then was) in Lee, leading to her conclusion that the circumstances did not justify an arrest, are apt here: 66. Assuming for a moment that it was reasonable to assume that the crack pipe was in Mr. Lee's possession, if the factors relied on by Constable Risebrough were objectively reasonable grounds for suspecting a person to be in possession of drugs, then the police would have grounds to arrest and search anyone who might be in possession of drug paraphernalia and who happens to have been sleeping. I find that these factors are not objectively reasonable grounds for arresting a person in the context of all the facts of this case. 67. Constable Risebrough testified that she commonly sees crack pipes in the course of her duties. This indicates to me that crack pipes are not unusual. A crack pipe does not on its own indicate possession of cocaine. At most, possession of a crack pipe might indicate reasonable grounds to suspect that whoever owns the crack pipe had in the past used drugs or might want to use drugs in the future. 68. Users of illegal drugs have rights like all other citizens. Police officers cannot arrest someone they suspect of having used drugs in the past on the basis that the person could be presently in possession of drugs, and then use the arrest as a basis for searching the person. Some evidence, in addition to the evidence that indicates possible drug use in the past, should be required to arrest a person for being presently in possession of drugs. 71. It is possible that on finding the crack pipe, the officer might have had reason to investigate the possibility of possession of cocaine, but this is not what she did; rather, she immediately arrested Mr. Lee. 72. In this case, at most, the presence of the crack pipe might have led to an investigation by the police officers. But I find that the crack pipe, together with the fact that the occupants of the car had been sleeping, did not provide objectively reasonable grounds to believe that Mr. Lee was in possession of cocaine. There was no evidence to indicate to the police that the crack pipe belonged to Mr. Lee rather than the passenger, or that he knew of its existence in the car, or that he had drugs in his possession. The officers had not viewed Mr. Lee using the crack pipe, nor did they view any other behaviour from which one could infer that he knew the crack pipe was in the car. The passenger was still in the car when Mr. Lee got out of the car, and the crack pipe was only found on her side of the car after she got out. [Emphasis added] [100] As such, Cst. Birtwistle's training on October 26, 2017, that "users" of these pipes were putting larger amounts into the pipes and carrying them around, does not advance or elevate his grounds to reasonableness. He did not see any further amounts in the pipe that would support his conclusions based on the new information he had learned at the course. He did not know if Ms. Janzen was a user of crack pipes, as opposed to someone simply carrying one around. Even if she was a user, which he did not know, in these circumstances, Cst. Birtwistle could only reasonably conclude that she had used the pipe in the past or might want to use the pipe in the future (Lee at para. 67). [101] At bottom, I accept that Cst. Birtwistle had a valid suspicion that the meth pipe could contain drugs beyond trace residue, based on his recent training. However, a suspicion is not sufficient to establish the legal test of reasonable grounds. I agree with the point made by the defence, that if suspicion alone was sufficient to establish reasonable grounds for arrest, the police could arrest anyone with drug paraphernalia insofar as there might be residue therein. This would be an undue expansion of police powers, and a sharp incursion on the rights of citizens - rights enjoyed by all including drug users: Lee at para. 68. [102] Accordingly, I find that there were no reasonable grounds to justify Ms. Janzen's arrest such that her s. 9 Charter rights were breached. In that event, the Crown concedes that the later search of Ms. Janzen's vehicle, where the drugs were found on the passenger seat and in the red purse was unlawful. Section 24(2) [103] The power to exclude evidence obtained in contravention of the Charter is set out in s. 24(2): (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [104] The Court in R. v. Grant, 2009 SCC 32 at para. 71 states that an analysis under s. 24(2) requires an assessment of three lines of inquiry to determine if, in all the circumstances, the administration of justice would be brought into disrepute: the seriousness of the Charter-infringing state conduct; the impact on the accused's Charter protected interests; and society's interest in the adjudication of the case on its merits. [105] The court must weigh and balance all three factors to determine whether, on the whole and having regard to all the circumstances, admitting the impugned evidence would bring the administration of justice into long-term disrepute. The inquiry is objective, taken from the perspective of a reasonable person informed of all relevant circumstances and the values underlying the Charter: Grant at paras. 67-70 and 85-86. (a) Seriousness of the Charter-infringing state conduct [106] The Crown argues that there are no circumstances here indicating a serious Charter breach regarding the search of Ms. Janzen's car incident to her arrest. The defence submits that this search demonstrated a blatant disregard for Ms. Janzen's rights, further aggravated by what the defence alleges was Cst. Birtwistle's deliberate attempts to lie about the matter to strengthen his evidence, including while under oath at trial. [107] In Grant, the Court stated that good faith on the part of the police may attenuate the seriousness of the Charter breach: 75. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [108] The court's task in considering police conduct is to situate it on a scale of culpability: R. v. Paterson, 2017 SCC 15, at para. 43. This scale of culpability is often expressed in terms of whether the police acted in good faith, bad faith, or somewhere along the spectrum in between: R. v. Fan, 2017 BCCA 99 at para. 71. [109] Regarding what constitutes good faith, in R. v. Wong, [1990] 3 S.C.R. 36, Justice La Forest, writing for the majority, stated that if it could be said that the police acted in accordance with what they had good reason to believe was the law, and before they had a reasonable opportunity to assess the consequences of the Charter on their established practices, the police will be taken to have acted in good faith: para. 40. The matter was similarly put in R. v. Spencer, 2014 SCC 43, where the court found that the good faith threshold will be satisfied by police acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose: para. 77. In R. v. Caron, 2011 BCCA 56, the court stated that good faith requires that the police honestly and reasonably believed they were acting lawfully at the time of breach: para. 41. [110] As Justice Watchuk put the matter in R. v. Robertson, 2017 BCSC 965: 28. Good faith on the part of the police reduces the court's need to dissociate itself from the police conduct by excluding the evidence (Grant at para. 75; see also R. v. Blake, 2010 ONCA 1 (Ont. C.A.) at paras. 24-27). This is especially true where the law governing the police's conduct was unclear or evolving at the time of the violation (R. v. Aucoin, 2012 SCC 66 (S.C.C.) at para. 50; R. v. Cole, 2012 SCC 53 (S.C.C.) at para. 86). Good faith is made out where there is evidence that the offending officer (or officers) attempted to act in accordance with their Charter obligations and mistakenly believed they had succeeded in doing so (see Aucoin at paras. 46 and 49 and R. v. Smith, 2005 BCCA 334 (B.C. C.A.) at paras. 56-61 for further discussion of what constitutes "good faith" and "bad faith" police conduct). [111] In terms of what good faith does not entail, ignorance, negligence or willful blindness regarding Charter standards falls short of this standard: Paterson, para. 44; Fan at para. 70; Grant at para. 75. Likewise, Justice Sopinka in R. v. Kokesch, [1990] S.C.J. 117 at para. 55 held that where the police "knew or ought to have known" they were engaged in unlawful conduct, they can not be said to have proceeded in good faith: see also Reddy at para. 101. [112] I have no hesitation in concluding that Cst. Birtwistle honestly and reasonably believed that he was acting lawfully in ordering Ms. Janzen's arrest and then searching her vehicle. The fact that I have found he did not have valid grounds for arrest and search does not mean that he was acting in an "ignorant" manner or with reckless disregard to Ms. Janzen's rights, as the defence argues. [113] While one could argue that he should have known the law (see Reddy at paras. 97-102), it is apparent that he did know that "something more" was needed beyond simply identifying a meth pipe in the possession of the accused. He thought that the "something more" was the information gained from his recent training which was a new development not necessarily addressed in the case law. I accept that this was an honestly held belief on Cst. Birtwistle's behalf. Upon review of the authorities, I am not satisfied that Cst. Birtwistle ought to have known he could not have proceeded as he did. Thus, I agree with the Crown that Cst. Birtwistle was acting in good faith and with due regard to his obligations under the Charter. [114] Accordingly, there is a diminished need for this Court to dissociate itself from his actions. The findings and conclusions found in Lee on this point at paras. 81-82 are distinguishable in that I do not find that Cst. Birtwistle acted unreasonably in ignoring Ms. Janzen's Charter rights, nor was there any pattern of breaches in this case. [115] As is evident above, I also reject the defence's submissions that Cst. Birtwistle lied to this Court and that he manipulated the evidence in the vehicle for "staging" purposes, both situations that would definitely justify censure from this Court. [116] Assessing the state conduct cumulatively - the good faith of Cst. Birtwistle combined with the non-intrusive action taken by him as the basis for his decision to arrest - supports the Crown's argument that the breach here was not at the serious end. Accordingly, this factor supports admission of the evidence. (b) Impact on Charter-protected interests of Ms. Janzen [117] The Crown submits that the impact on Ms. Janzen's Charter-protected interest were low. The search was not of a home, or Mr. Janzen's person, but that of a car she did not own and which was situated on a public roadway. These factors are said by the Crown to indicate a reduced expectation of privacy -- if any such expectation at all. [118] The defence's position is that the impact on Ms. Janzen's rights was significant as it involved her right not to have her belongings searched incident to arrest. [119] The second line of inquiry looks at the seriousness of the infringement from the perspective of the accused's Charter protected interests: Grant at paras. 76 and 95; R. v. Harrison, 2009 SCC 34 at para. 28. The relevant considerations are twofold: the interests engaged by the right (Grant, at paras. 77-78, 95-96); and the degree of negative impact upon the right (Harrison at para. 28). [120] Regarding the first consideration, this was not a search of Ms. Janzen herself (Reddy at para. 106; Lee at para. 83; Lambert at para. 8) or her home, both of which would have been clearly highly personal and intrusive. Ms. Janzen did not own the vehicle, but I accept that she had the use and control of it that entailed that she had some privacy rights vis-à-vis the car. There was a diminished expectation of privacy on Ms. Janzen's part in those circumstances; however, a certain expectation did remain. [121] Regarding the second consideration, I find that Ms. Janzen's rights were minimally impacted. First, the vehicle was parked on a public roadway with her personal items in full view for anyone, including officers on scene, to see those items. Ms. Janzen put herself into a state of impairment that in turn gave rise to the circumstances in which the police found her. She left her purse in an open state for anyone to see the contents. There is no suggestion that she could not have closed her purse before exiting the Cavalier as Cst. Smit requested. [122] In my view, this factor is a neutral one or very slightly favour the exclusion of the evidence as Ms. Janzen did have a residual expectation of privacy, and the impact on her rights in this regard, while low, were not negligible. (c) Society's interest in adjudication of the case on its merits [123] The defence argues that this factor favours exclusion as there was blatant police conduct that threatens the repute of the justice system. The defence seeks to exclude the drugs found in the red purse and in the Mason jar when the Cavalier and its contents were searched. This is non-bodily physical evidence and the reliability of the evidence is not related to the Charter breach. To admit the evidence, the defence states, would be to condone Cst. Birtwistle's ignorance of the Charter. [124] The Crown relies on the reliability of the evidence, the centrality of this evidence to the case and society's interest in adjudicated the matter on its merits in establishing that this factor favours inclusion. The Crown's synopsis refers to the search revealing 30 grams of cocaine, 9.1 grams of a heroin/fentanyl mix, 30 grams of methamphetamine and 900 ml of GHB. As the Crown stated, without this evidence there is no case. [125] As Justice Butler (as he then was) ably stated in R. v. Hamdan, 2017 BCSC 867, synthesizing Grant at paras. 79-83, the third factor balances society's interest in seeking truth in a criminal trial against the effect admitting the evidence would have on the long-term repute of the justice system. Overall, the court must determine whether the interests of justice are better served by the inclusion or exclusion of the evidence: 42. The third line of inquiry considers whether the truth-seeking function of a criminal trial is better served by admission of the evidence, or by its exclusion. An accused has the right to be dealt with according to the law. This inquiry must consider both the negative impact of admitting the evidence on the repute of the administration of justice, and the impact of failing to admit the evidence. The reliability of the evidence and its importance to the Crown's case are factors to be considered: Grant, at paras. 79-83. [126] Unquestionably, admission of the drugs is critical to the prosecution of the drug offences that Ms. Janzen faces. It is also highly reliable evidence. [127] The charges that Ms. Janzen faces are serious. As noted in Grant at para. 84, this cuts both ways. Society has a significant interest in ensuring that the case is adjudicated on its merits and the trier of fact has all of the available evidence to reach that determination. This is particularly so with respect to these drug charges, particularly including fentanyl, which has become a severe scourge in our communities causing countless deaths and suffering. I would also stress, however, that the jeopardy that Ms. Janzen faces requires vigilance against violations of her Charter rights in the prosecution of her case. [128] Regarding the repute of the administration of justice, the heinousness of the crime is not a factor in the analysis, nor should it be. Doherty J.A. in R. v. Golub, [1997] O.J. No. 3097 (C.A.), citing Justice Iacobucci in R. v. Burlingham, [1995] 2 S.C.R. 206, makes this point clear: 60. In addressing the effect of the exclusion of the evidence on the repute of the administration of justice, I bear in mind the comments of Iacobucci J. in R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.), at 408: ... we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques, are of fundamental importance in applying s. 24(2). [129] In my view, this factor favours inclusion of the evidence. (d) Conclusion re Charter, s. 24(2) [130] Justice Doherty in R. v. McGuffie, 2016 ONCA 365 summarizes how the three Grant factors are to be balanced: 62. The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.), at paras. 33-34. 63. In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241 (Ont. C.A.), at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140. [131] Overall, while each of the Grant factors must properly be considered in the analysis, because the Grant factors are mutually incommensurable, the "balancing" will never be an entirely objective exercise: Paterson at para. 54. Nonetheless, the court must come to a reasonable conclusion. [132] When balancing all of the above factors, I find that the balance tips in favour of admitting the evidence arising from the search. I conclude that, in all of the circumstances of the case, admitting that evidence will not bring the administration of justice into disrepute. The defence application is dismissed. "Fitzpatrick J."